1. Applicant's Name: a. Application Date: 19 November 2020 b. Date Received: 14 December 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief stating the disciplinary action they received was the result of legally purchased coca leaves to be used as tea from an online website that stated it was not a cocaine derivative, was not illegal, and would not compromise drug testing. They brought the proof of their purchase to their command, and it was discarded. They performed their extra duty as part of their nonjudicial punishment. They were demoted in rank to private two/E-2 and was later discharged with a general (under honorable condition). They were not offered behavioral health counseling or participation in the Army Substance Abuse Program (ASAP). (3) They were told that if they accepted their nonjudicial punishment, that it would not go against their record, and they would be allowed to deploy with their unit. However, what they were told was untrue, they were not returned to their unit and was instead discharged. Their violation for the wrongful use of cocaine is now showing on civil police records. The charges against them for using an herbal remedy has ruined their life. Please see the attached paperwork from the original website they ordered from; it clearly states that the coca tea does not have "intoxicating action." b. Board Type and Decision: In a records review conducted on 13 October 2023, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board determined the RE code was proper and equitable and voted not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / Army Regulation 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 30 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 November 2010 (2) Basis for Separation: On 7 September 2010, the applicant tested positive for cocaine, a controlled substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 November 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 December 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2006 / 6 years b. Age at Enlistment / Education / GT Score: 27 / HS Equivalent / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 94M10, Radar Repairer / 4 years, 11 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (10 June 2008 - 4 August 2009) f. Awards and Decorations: ICM-2CS, ARCOM, AAM-2, ADCM, NDSM, GWTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Electronic Copy of DD 2624, dated 15 September 2010, reflects the applicant tested positive for COC 184 during an Inspection Random (IR) urinalysis conducted on 7 September 2010. (2) A DA Form 4856 (Developmental Counseling Form), dated 22 September 2010, reflects the applicant received developmental counseling for violation of Army Regulation 600- 85 (Army Substance Abuse Program). The applicant tested positive on a Urinalysis Test conducted on 7 September 2010. It was recommended they be punished under the Uniform Code of Military Justice (UCMJ) and separation from the Armed Service. The Plan of Action states, "enrollment into Army ASAP" and "talking with Behavioral Health." The applicant agreed with the counseling key points and understood the plan of action. (3) CID Law Enforcement Report, Initial Final (C) - 0278-2010-CID452-19595, dated 22 September 2010, revealed that applicant used cocaine as determined by a urinalysis. (4) A DA Form 8003 (ASAP Enrollment), undated, reflects the applicant being referred by his chain of command to the ASAP for a comprehensive assessment to determine whether they meet the criterial for enrollment. Item 15 reflects the applicant is being seen by the Community Mental Health Service. The applicant's commander/supervisor recommendation states "I suspect soldier/employee has an alcohol and/or other drug problem." (5) A DA Form 2627 (Record of Proceedings under Article 15, UCMJ dated 4 October 2010, shows the applicant received nonjudicial punishment for, between on or about 31 August 2010 and on or about 7 September 2010, wrongful use of cocaine, a controlled substance. Their punishment consisted of a reduction to the rank/grade of private two/E-2, forfeiture of $811.00 per month for 2 months, and extra duty for 45 days. (6) A DA Form 3822 (Report of Mental Status Evaluation), dated 9 November 2010, reflects the applicant has the mental capacity to understand and participated in the proceedings, was mentally responsible, and meets retention requirements. (a) Section V (Diagnoses) reflects a diagnosis of Partner Relational Problems (meets retention requirements). (b) Findings - there is no evidence of a cognitive disorder or severe mental disease or defect. From a psychiatric perspective, the applicant meets retention requirements, is fit for duty and commands full capacity. (7) A memorandum, Headquarters and Headquarters Company (Rear) (Provisional), Fort Drum, subject: Separation under Army Regulation 635-200, Paragraph 14-12c(2), Misconduct-Abuse of Illegal Drugs [Applicant], dated 30 November 2010, provides the applicant's company commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14-12c, misconduct-abuse of illegal drugs, with a recommended characterization of service of general (under honorable conditions) for, on 7 September 2010, testing positive for cocaine, a controlled substance. On the same day the applicant acknowledged the basis for the separation and of the right available to them (a) On 30 November 2010, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them and elected to submit a statement on their behalf. (b) On 2 December 2010, the applicant submitted a statement and requested to be retained in the military and states the product that made them fail the urinalysis was coca leaves. The coca leaves are not illegal, and the ingredients do not include any mention of cocaine. The applicant did not know the coca leaves would cause a positive urinalysis test result. Prior to this incident they have proven to be a great assist to the Army. Since being in the Army, they have completed a master's degree and has begun work towards a second degree. The applicant believes they are deserving of another chance to continue their Army career. (8) On 8 December 2010, the commander submitted the request to separate the applicant prior to their expiration term of service. (9) A memorandum, 10th Sustainment Brigade, subject (Separation under Army Regulation 635-200, Paragraph 14-12c (2), Misconduct-Abuse of Illegal Drugs [Applicant]) dated 16 December 2010, the separation authority directed that the applicant' be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (10) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged on 30 December 2010, with 4 year, 11 months, and 7 days of net active service this period. The applicant has not completed the first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge) * Applicant's Memorandum (Separation Rebuttal for Chapter 14-12c, Headquarters, Headquarters Battalion, 10th Mountain Division (Light Infantry)), dated 2 December 2010, reflecting the applicant's request to remain in the U.S. Army, their use of coca leaves, and their prior creditable service * Army Achievement Medal Certificate * Internet Article, Nacionalte.com, 6 December 2010, "Beneficial Properties of the Coca Tea" reflecting the benefits of coca tea leaves, that cocaine is not a component of coca tea, and that coca tea leaves does not have exciting or intoxicating action * DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of their petition. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553 (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, Title 10, U.S. Code, Section 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense (DoD) Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) An Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) A General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (3) A Under Other Than Honorable Conditions Discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Paragraph 14-12c (2), misconduct (drug abuse), provides relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. A Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (5) Chapter 15 (Secretarial Plenary Authority), currently in effect, provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c(2), misconduct (drug abuse). f. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DoD Instructions 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. g. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. It provides the ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army's missions. Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. h. Manual for Courts-Martial, United States provides military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces. Article 112a (Wrongful Use, Possession, etc., of Controlled Substances) stated in subparagraph e (Maximum Punishment) the wrongful use, possession, manufacture, or introduction of controlled substance, to include cocaine the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement. 8. SUMMARY OF FACT(S): a. Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. b. The applicant's AMHRR reflects the specific facts and circumstances concerning the events which led to the discharge from the Army, specifically, the applicant's acceptance of nonjudicial punishment for their wrongful use of cocaine. A DA Form 8003 shows the applicant's chain of command recommendation for their ASAP assessment the applicant's behavioral health assistance. The applicant's DD Form 214 indicates their discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). They completed 4 years, 7 months, and 23 days of their 6-year contractual obligation prior to the misconduct that led to their discharge. c. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. d. The Manual for Courts-Martial provides wrongful use, possession, manufacture, or introduction of a controlled substance, to include cocaine may result in a dishonorable discharge, forfeiture of all pay and allowances, and confinement. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. KURTA FACTORS. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD (70%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes that the applicant's PTSD began during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, PTSD. As there is an association between PTSD and self-medication with illicit drugs, there is a nexus between his diagnosis of PTSD and his positive cocaine result on UA. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that mitigating BH condition, PTSD or experience outweighed the basis for separation. b. Prior Decisions Cited: NA c. Response to Contention(s): (1) The applicant contends the disciplinary action they received was the result of legally purchased coca leaves to be used as tea from an online website that stated it was not a cocaine derivative, was not illegal, and would not compromise drug testing and provides an article on National Tea in Latin America, specifically Ecuador. The Board considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends they were not offered behavioral health counseling or participation in the Army Substance Abuse Program (ASAP). The Board considered this contention during board proceedings along with the totality of the applicant's service record. d. The Board determined that the characterization of service discharge was inequitable based on the applicant's potentially-mitigating diagnoses/experiences: PTSD (70%SC). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board determined the RE code was proper and equitable and voted not to change it. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable due to the following factors: the Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Length, Quality, Combat) and concurred with the conclusion of the medical advising official that the applicant's PTSD does outweigh the applicant's positive test for cocaine. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210011075 1